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By: Thomas S. Tripodianos Published: March 2020

Updates to Executive Order 2026

Today you are responding to yet another new COVID-19 reality.  This past Friday Empire State Development updated it’s official guidance on Executive Order 202.6.  Specifically Item number 9 now reads:

9. Construction

All non-essential construction must shut down except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site).

Essential construction may continue and includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters. At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit. Sites that cannot maintain distance and safety best practices must close and enforcement will be provided by the state in coordination with the city/local governments. This will include fines of up to $10,000 per violation.

For purposes of this section construction work does not include a single worker, who is the sole employee/worker on a job site.

This guidance took effect immediately and remains in effect through April 19, 2020.

The Executive Orders can be found here.

AGC is offering the following unofficial guidance from Empire State Development (ESD):

“Local governments, including municipalities and school districts, are allowed to continue construction projects at this time as government entities are exempt from the essential business restrictions. However, to the greatest extent possible, local governments should postpone any non-essential projects and only proceed with essential projects when they can implement appropriate social distancing and cleaning/disinfecting protocols. Essential projects are those that have a nexus to health and safety of the building occupants or to support the broader essential services that are required to fulfill the critical operations of government or the emergency response to the COVID-19 public health crisis.”

WHAT DOES ALL THIS MEAN?

NOT ALL CONSTRUCTION WORK HAS BEEN HALTED.

Public Work:

1- Because “State and local governments including public authorities, municipal governments, and school districts are not covered by Executive Order 202.8." (See ESD FAQ Question No.5) public work may still proceed.  The public owners, have been making their own determinations as to how particular projects will be moving forward.  You should not unilaterally stop work on any public work but you should reach out to your contacts on each project and request specific guidance about how to proceed.

Private Work:

2- Most private work will likely be deemed non-essential.  You should therefore begin the process of shutting these projects down.  Do so safely so that the project and the public remain safe while it's shut down. Consult with your safety professionals to help determine what is appropriate.  The one exception would be the single person job site which has been excluded from the ESD guidance.   So for example, a single worker painting a room and otherwise following safety protocols is apparently allowed to continue working.  However, the single worker exception can also mean that you are required to inspect and maintain your shut down projects in a manner consistent with public safety.

If you fall into the category of an essential business:

“Essential Businesses must continue to comply with the guidance and directives for maintaining a clean and safe work environment issued by the Department of Health and every business, even if essential, is strongly urged to maintain social distance to the extent possible.” (ESD Guidance)

  • Prepare and  discuss a plan for progressing the work under the contract in a manner that in compliance with all applicable rules and regulations, including any temporary or emergency orders issued by applicable governmental and regulatory agencies;
  • Take such actions as may be necessary, and which are consistent with the restrictions or limitations imposed by the relevant authorities, to reduce or eliminate delay where possible; and
  • Document any claim for delay associated with this event, identifying the specific work affected and the extent of the delay and steps taken to mitigate the delay.

Also this past Friday, President Trump signed the “Coronavirus Aid Relief, and Economic Security Act” (CARES Act), allocating $2.2 trillion in spending and tax breaks to support and boost the economy and provide relief for individuals and businesses affected by this pandemic.  Contact your accountants and business advisors for more information on whether you qualify for any of these programs and how to apply.

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